State of New York
Department of State
Committee on Open Government

The staff of the Committee on Open Government is authorized to issue
advisory opinions. The
ensuing staff advisory opinion is based solely upon the information
presented in your
correspondence.

Dear

As you are aware, I have received your letter of May 12.

You wrote that you serve as counsel and a member of the Board of
Trustees of the Jervis
Public Library in Rome ("the Library"). Because it is an
association library, it has been advised that
it is not subject to the Freedom of Information Law. You indicated,
however, that the City of Rome
funds a substantial portion of the Library's budget, and that the Library
forwards financial statements
to the City. The City has determined and the Committee's Assistant
Director has verbally advised
that those records are subject to the Freedom of Information Law. In
relation to the foregoing, you
wrote as follows:

"...what, if any, effect is had by the fact that the Library
stamps
'confidential' the envelope in which the statements are sent to City
Hall. We thought this stamp would mean the City would have to
contact Jervis if a FOIL request were received, for purposes of
determining whether answering the request would violate the
confidentiality of a particular document or whether Jervis was willing
to waive confidentiality in that particular instance.

"If the confidential stamp has no such meaning, is there any
way
Jervis can ensure it will be contacted when a FOIL request is made at
City Hall? Is there any way to protect the information in the financial
statements, short of failing to provide it in the first place?"

In this regard, first, I believe that any record maintained by or
for the City falls within the
coverage of the Freedom of Information Law. Section 86(4) of that statute
defines the term "record"
expansively to include:

The Court of Appeals has construed the definition as broadly as its
specific language
suggests. The first such decision that dealt squarely with the scope
of the term "record" involved
documents pertaining to a lottery sponsored by a fire department. Although
the agency contended
that the documents did not pertain to the performance of its official
duties, i.e., fighting fires, but
rather to a "nongovernmental" activity, the Court rejected
the claim of a "governmental versus
nongovernmental dichotomy" [see Westchester Rockland Newspapers
v. Kimball, 50 NY2d 575,
581 (1980)] and found that the documents constituted "records" subject
to rights of access granted
by the Law. Moreover, the Court determined that:

"The statutory definition of 'record' makes nothing turn on
the
purpose for which it relates. This conclusion accords with the spirit
as well as the letter of the statute. For not only are the expanding
boundaries of governmental activity increasingly difficult to draw, but
in perception, if not in actuality, there is bound to be considerable
crossover between governmental and nongovernmental activities,
especially where both are carried on by the same person or persons"
(id.).

In another decision rendered by the Court of Appeals, the Court focused
on an agency claim
that it could "engage in unilateral prescreening of those documents
which it deems to be outside of
the scope of FOIL" and found that such activity "would be
inconsistent with the process set forth in
the statute" [Capital Newspapers v. Whalen, 69 NY 2d 246, 253
(1987)]. The Court determined that:

"...the procedure permitting an unreviewable prescreening of
documents - which respondents urge us to engraft on the statute -
could be used by an uncooperative and obdurate public official or
agency to block an entirely legitimate request. There would be no
way to prevent a custodian of records from removing a public record
from FOIL's reach by simply labeling it 'purely private.' Such a
construction, which would thwart the entire objective of FOIL by
creating an easy means of avoiding compliance, should be rejected"
(id., 254).

Second, based on several judicial decisions, an assertion, a request
for or a promise of
confidentiality, unless it is based upon a statute, is generally meaningless.
When confidentiality is
conferred by a statute, an act of the State Legislature or Congress,
records fall outside the scope of
rights of access pursuant to §87(2)(a) of the Freedom of Information
Law, which states that an
agency may withhold records that "are specifically exempted from
disclosure by state or federal
statute". If there is no statute upon which an agency can rely
to characterize records as "confidential"
or "exempted from disclosure", the records are subject to
whatever rights of access exist under the
Freedom of Information Law [see Doolan v. BOCES, 48 NY 2d 341 (1979);
Washington Post v.
Insurance Department, 61 NY 2d 557 (1984); Gannett News Service, Inc.
v. State Office of
Alcoholism and Substance Abuse, 415 NYS 2d 780 (1979)]. As such, an
assertion or promise of
confidentiality, without more, would not in my view serve to enable
an agency to withhold a record.

Lastly, while the City could agree to inform the Library when a request
is made for records
transmitted by the Library, I do not believe that the City would be
obliged to do so.